Labor Regulations Add Clarity and Controversy To COVID-19 Paid Sick and Family Leave

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On April 1, 2020, the U.S. Department of Labor (“DOL”) released regulations pursuant to the Families First Coronavirus Response Act (“FFCRA”), which became effective on April 1. As discussed in more detail in our March 19, 2020 Alert on the FFCRA, that law includes two separate paid leave laws, the Emergency Paid Sick Leave Act (“EPSL”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”), which provide eligible employees with paid leave for various circumstances relating to the COVID-19 pandemic. Previously, the DOL had issued a number of frequently asked questions and answers offering guidance on several aspects of the FFCRA. However, the FAQs left many questions unanswered. Moreover, the FAQs sparked controversy, with some members of Congress contending that the DOL’s guidance contradicted the language of the FFCRA. The new DOL regulations largely followed the original guidance contained in the FAQs and added clarity in several areas. Below is a high-level overview of the new insights provided by the DOL’s regulations, which are scheduled for official publication on April 6, 2020. Employers should be aware that this is a rapidly evolving situation and they should consult counsel, especially in light of the controversy and the potential for further changes.

Determination of Coverage

In general, employers are covered if they “currently” have less than 500 employees regardless of how long they have been employed and regardless of whether they are full-time or part-time. The coverage determination is made at the time leave is requested. The tally of employees includes those on “leave of any kind” but does not include those who were “laid off or furloughed” at time leave was requested.

Inclusion of Shelter-In-Place and Stay-At-Home Orders

Among the reasons for which employees can use EPSL is a government-issued quarantine or isolation order. The regulations clarified that such orders include shelter-in-place and stay-at-home orders issued by state and local governments. Importantly, however, the regulations also specify that employees are not eligible for such leave if their employer closes or does not have work for the employee, even if the employer’s decision was due to one of those orders.

Details for Employees Ordered to Quarantine or Seeking Diagnosis

For EPSL, employees can take leave if ordered by their medical provider due to a COVID-19-related reason. This includes cases where the employee is told to quarantine due to being “particularly vulnerable to COVID-19.”

As for employees requesting leave to seek diagnosis, they qualify for leave if they are experiencing fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention.

Limitations on Child-Care-Related Leave

Employees needing leave because their child’s school/childcare is unavailable may not take leave if another suitable person is available.

Leave for Part-Time Employees

Part-time employees may take EPSL and EFMLA, but it was unclear how this was to be calculated. The regulations contain formulas for calculating both the number of hours for which part-time employees receive pay as well as the hourly rate for such pay. The formulas are different for EPSL and EFMLA, but both laws require calculating average hours and average pay.

Expanded Exemption for Health Care Workers

Consistent with the FAQs, the regulations expand the definition of “health care provider” to include a wide variety of health care employers, and including businesses contracting with such employers to help maintain their operations. Similarly, the regulations broadly define “emergency responders” to include anyone “needed for the response to COVID-19,” including, for example, public works personnel.

500 Employee Count

Employers should count all employees currently employed, regardless of how long those employees have worked for the employer. Although the count includes employees “on leave,” it does not include those who were “laid off or furloughed” at the time leave was requested.

EFMLA Eligibility

Employees must be on payroll for the 30 calendar days immediately prior to the day that the employee’s leave would begin. Employees who were temp-to-hire get credit for their time as a temp. Employees who qualified for this leave prior to their layoff or furlough will be entitled to this leave immediately when/if they return to work.

Concurrent PTO and EFMLA

Employers can allow (or require) concurrent use of other available PTO for EFMLA but with some limitations. If the employee does not have EPSL available (e.g., it was already used for a different reason) for the first two weeks of leave (which is unpaid under EFMLA), the employer can allow or require employees to use any other accrued leave. For the remaining 10 weeks, employers may allow or require employees to supplement the remaining one-third of pay with available PTO. Employers will not receive any tax credits for any amount they pay over and above what an employee is entitled to under the Act.

Intermittent Leave

Intermittent leave is only available under EPSL and the EFMLA for employees who telework or who are taking time off due to child-care reasons and, even then, only by agreement of the employer. Employers are also free to come to an agreement with employees about what increment of leave they can take.

Information Needed to Take Leave and Recordkeeping

The employee does not have to provide much substantiation for leave. However, the employer may request the information required by IRS to support a request for tax credits pursuant to the FFCRA. https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.

Employers are required to maintain documentation regarding leaves granted or denied for four years. If an employer only receives verbal information from the employee, the employer must document that employee’s request.

Further, employers providing EFMLA are not required, like regular FMLA leave, to provide employees with certain forms such as the designation of leave and notice of rights.

Enforcement

There is no private right of action against employers who were not previously subject to the FMLA. However, those employers are still subject to enforcement actions by the DOL.

One Time Use of EPSL

Employees are limited to a total of 80 hours Paid Sick Leave, even if they switch employers.

FLSA Issues

Employers may set up more flexible schedules for employees working from home to accommodate the different home life that coronavirus has caused by making clear that the continuous workday guidance of 29 CFR 790.6(a) does not apply to telework situations related to COVID-19. This would allow employers and employees to create telework schedules which would allow workers to take chunks of time off during the day to attend to children while only paying employees for hours actually worked. Employers should require their employees who are teleworking to keep a record of their hours worked.

Further, the regulations provide that nothing in the FFCRA should be construed as impacting an employee’s FLSA exempt status.

FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients.

Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on Coronavirus and workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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